NOTE: The March of the Ents: Using America's National Forests to Mitigate the Threat of Climate Change

By Joshua Axelrod | 63 Am. U. L. Rev. 1627 (2014)

In 2013, the Intergovernmental Panel on Climate Change (IPCC) began publishing Working Group contributions to the IPCC’s Fifth Assessment Report on the state of scientific knowledge regarding climate change. According to Working Group I, the need to significantly limit greenhouse gas (“GHG”) emissions has become imminent if international efforts to hold warming in check are to have any chance at success. Several months later, the IPCC’s Working Group II issued a more dire warning, finding consensus that while the impacts of climate change may remain “moderate” under a-one-to-two degree Celsius warming scenario, “[a]ggregate economic damages accelerate with increasing temperature.” At the same time, the risk of severe impacts to human health, food security, rural livelihoods, and biodiversity—especially in developing countries—increases as global average temperatures rise. As encapsulated by the New York Times, if GHG reductions are not achieved within a short timeframe, future generations may be faced with the expensive—and only theoretically possible—solution of mechanically removing GHGs from the atmosphere “to preserve the livability of the planet.”

Despite these observed and ongoing threats, the United States has been slow to react. Efforts by Congress to pass overarching climate legislation have been abandoned and state efforts to implement innovative legislation aimed at mitigating the climate change threat have been met with considerable industry and political resistance. Within this political and legal vacuum, President Obama directed the U.S. Environmental Protection Agency (EPA) to promulgate a number of new regulations under the Clean Air Act (CAA) to attempt to aggressively curtail emissions of GHGs. However, the tools available under the CAA are insufficient on their own to address the United States’ contribution to climate change. In the absence of new legislation targeting climate change, the Administration should explore additional legally permissible and innovative options under other environmental statutes with the aim of mitigating the climate-change threat.

This Note argues that an innovative application of existing law is available under the National Forest Management Act of 1976 (NFMA). While a regulatory regime that directly limits GHGs could lead to rapid short-term decreases in emissions, applying the NFMA to help slow the effects of climate change could result in two key, though longer term, benefits. First, forest management aimed at reducing land-use changes (i.e., reducing deforestation and other types of disturbances) has significant potential to cut current GHG emission rates. Second, as forests mature, their carbon sequestration potential increases, meaning that management toward old-growth will not only help reduce emissions but will also help preserve already existing carbon sinks.

This Note concludes by reiterating that the challenges created by climate change necessitate a shift in forest management priorities that emphasize measures likely to help mitigate climate-change threats, as opposed to priorities focused on maximal natural resource exploitation.